September 30, 2009

D.C. Prosecutors Appeal Ruling on Strip Searches at Courthouse

Paul Bame had a white question mark painted on his face when he was arrested in September 2002 at a protest during the annual fall meetings of the International Monetary Fund and the World Bank.

Bame, among a group arrested that day in Washington for non-violent offenses, was taken to the basement of the D.C. Superior Court holding facility. Bame and the others all went through a metal detector. An officer conducted a pat-down search.

In cells with eight to 12 men, the detainees were ordered to drop their pants, bend over and cough. Deputy U.S. marshals were searching for contraband. The authorities didn’t find anything.

Bame and several other protestors sued Todd Dillard, former U.S. Marshal for D.C. Superior Court, in his individual capacity for punitive and compensatory damages. Dillard, who has retired, is a former head of security at Superior Court.

Last month, Judge Rosemary Collyer of the U.S. District Court for the District of Columbia ruled that Dillard is not entitled to qualified immunity. The judge also ruled against the plaintiffs’ motion for summary judgment. The U.S. Attorneys Office for D.C. appealed the ruling, and the U.S. Court of Appeals for the D.C. Circuit picked up the case this week. No argument date is set.

At issue is whether Dillard is entitled to qualified immunity. The D.C. Circuit hasn’t decided whether a practice that requires the strip-search of all prisoners entering a cellblock is constitutional.

In 1999, Acting Director George Havens of the U.S. Marshal Service, who was appointed by then-Attorney General Janet Reno, issued a policy directive that set in place specific instructions for “reasonable and legal searches,” court records show.

The policy directive said strip searches were only authorized when a deputy U.S. marshal found reasonable suspicion to believe that the detainee was carrying contraband and/or weapons; or the person is considered a security, escape and/or suicide risk.

“It is difficult to imagine a more intrusive procedure than the Drop, Squat, and Cough searches in which Plaintiffs had to pull down their pants and underwear, squat in front of other arrestees and two male Marshals, and cough,” Collyer said in her 20-page opinion in August.

Collyer said deputy U.S. marshals did not attempt to develop a justification for the strip searches. She declared the practice unreasonable and unlawful. And she said that Dillard is not entitled to qualified immunity because he should have known that the blanket strip-searches of non-violent, non-felony offender were against the law in September 2002.